Coronavirus (COVID-19) business support: equality impact assessments

Legal Aid – Coronavirus Resilience and Recovery Fund

Name of Grant:

Legal Aid – Coronavirus Resilience and Recovery Fund (CRRF)

Policy Lead

Alison Dewar – Access to Justice Unit

Legal power used:

Section 126 of the Housing Grants, Construction and Regeneration Act 1996

Grant Overview:

Legally aided services perform a valued public function in our society. Services paid for by legal aid enable people to enforce or protect their rights, resolve disputes, defend themselves when the state and others take action against them and use the remedies, processes and facilities the law provides to manage their personal affairs and relationships. At the collective level, the ability to use the law to challenge the wrongful use of power and defend criminal charges supports the rule of law and provides a firm foundation for a society based on civil, political, social and human rights.

It has been important to keep the justice system functioning throughout the Covid-19 pandemic so that disputes, which may be felt more keenly and cause more distress at an already anxious time, continue to be resolved.

The legal profession has played its part in keeping the system functioning and continuing to deliver services to people in need. As we emerge from the pandemic, maintaining a legal aid sector will be crucial to our recovery and the resolution of problems associated with the pandemic and resulting economic shock. We know that emerging evidence suggests that Covid-19 has exacerbated many of these pre-existing inequalities in society and exposed the vulnerability of some population groups. The Scottish Government is developing a range of policy response to ameliorate that impact. Guaranteeing access to legal advice and representation is one part of that response.

This Coronavirus Resilience and Recovery Fund (CRRF) was jointly delivered by the Scottish Government and The Scottish Legal Aid Board, who in collaboration, designed the fund to support those who have seen a drop in new legal aid business - so that legal firms and law centres are able to continue to offer legal aid services to the public during and post pandemic.

Similarly to other specific or sectorial grant schemes, the CRRF had an eligibility criteria for access to funding. In this case, it was defined, after consulting the institutions representatives of the legal profession, particularly the Law Society of Scotland and the Scottish Legal Aid Board, that a minimum amount of legal aid turnover should be required from the legal firms to qualify for the award. In addition and in line with other Scottish Government Grants, other sources of Government funding, such as business grants and furlough payments were taken into account as part of the eligibility criteria.

Executive Summary:

The initial framing exercise did not highlight any likely negative impact on each of the protected characteristics, particularly because the design of the Fund is aimed at supporting any legal firm or law centre which provides a minimum level of legal aid services and presents evidence of loss of legal aid income, when compared to the period before the pandemic.

We have taken into account the low risk of the CRRF causing any negative impact on people with protected characteristics.

The CRRF will support legal firms and law centres who have seen a drop in new legal aid business, enabling them to continue offering legal aid services to the public during and post Covid-19. It is intended to complement the existing interim fees policy which addresses the related – although separate – issue of cash flow problems arising from delays in case progression, a range of other changes that the (SLAB) have put in place to support the remote provision of legal advice and representation over this period, and other Government financial support that has been available.

The CRRF’s main purpose of helping the legal aid business to continue to offer legal aid services will also positively affect:

(1) the people living in Scotland who depend on legal aid services, including individuals with protected characteristics, such as: age (children’s legal aid^[135] and older people seeking legal support), race and ethnic minorities (immigration etc) and gender (protection orders etc).

(2) the Scottish communities, improving their cohesion^[136] through a proportionate, fair and effective justice system^[137] underpinned by the right to access to justice.

The CRRF outcomes promote human rights, the rule of law, and a proportionate, fair and effective justice systems (National Outcomes – Human Rights), the protection of rights of children who need legal representation (Children and Young People – National Outcomes) and cohesive communities (Communities – National Outcomes).

Key Findings - impact assessment of benefits and/or disadvantages.

The great majority of legal aid support is distributed on a ‘judicare’ basis: case by case funding for services provided by solicitors in private practice and others instructed by them, such as advocates and experts. In 2019-20, 733 solicitor firms received legal aid payments for providing services to the public. Each of those firms may specialise in legal aid cases or offer legal aid only in some specialist legal areas, or decide to offer legal aid on an ad hoc basis, as part of a mix of services including court, conveyancing and other advice services.

Figures from the Scottish Legal Aid Board to 25 January 2021 show variation in the recovery of volumes of work in different aid and case types. For example, applications have recovered to 19-20 levels in mental health work, and outstripped 19-20 levels in solemn criminal work. Other areas vary from a current reduction of cases of around 40% in Justice of the Peace criminal work, to close to 10% reductions in Sheriff Court summary criminal work and in family court cases. There has been a reduction of 19% in fees paid to solicitors in 2020 as compared to 2019 at the end of December.

Within those totals, some legal firms will have seen an increase in business levels while others have seen reductions. Additionally, some firm’s business structures will have meant that other generic Covid-19 business support schemes have not suited their set-up. Because the sector is a diverse group of over 700+ private firms it was not possible to establish exactly the amount of support needed nor where it is most keenly felt.

The initial framing exercise did not highlight any likely negative impact on each of the protected characteristics, particularly because the design of the Fund is aimed at supporting any legal firm or law centre which provides a minimum level of legal aid services and presents evidence of loss of legal aid income, when compared to the period before the pandemic.

In addition, because this is a demand-led project, and the criteria for funding for this CRRF, focused on firm’s business income and other UK and Scottish Government Covid fund packages and that this information was unknown to the Scottish Government and would not be known until applicants applied to the Fund. There was the risk of a lower than expected number of applications to the Fund or of a large number of applicants who would not to meet the required eligibility criteria to receive the support.

Age: Older People and Children and Young People

Older people are more likely to have long-term health condition (55 or over) and more likely to be disabled (75 or over), according to the Communities Analysis Division of the Scottish Government. The same analysis indicates that older people are experiencing substantial higher death rates, with 91% of deaths among those aged 65 or over (1). Additionally, more than 50% of people in Scotland advised to shield during the Covid-19 pandemic were aged 65 or more; this percentage increases to 73% when the age is 55+ (2).

For the legal profession in general (including paralegals), a survey carried out by the Scottish Law Society suggests 38% are aged 46 to 65, with around 2% aged 66+ (3).

In the civil legal aid sector, the respondents to a survey from the Scottish Legal Aid Board (SLAB) were 55% over 45 and 4% aged 65+ (4).

(1) The Scottish Government. Impact of COVID-19 on Equality Groups – Age Analysis (October 2010). (last accessed 03/03/21)

(2) The Scottish Government. Shielding: a way forward for Scotland (June 2020) (last accessed 03/03/21)

(3) Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

(4) Scottish Legal Aid Board (SLAB). Civil Solicitors Survey 2019 Report (March 2020). (last accessed 03/03/21)

Sex: Men and Women

There is evidence that males are more likely to become seriously ill with Covid-19. Analysis by the Scottish Legal Aid Board suggests this is most significant in younger age groups. In Scotland at 1 June 2020 62% of confirmed cases were female; 38% of confirmed cases were male. However 47% of hospital admissions were females and 53% were males (1).

For the profession, registrar data shows 53% of solicitors are women, with survey respondents for the wider profession (including paralegals) indicated that 61% identified as female (2).

However, data gathered by the Law Society of Scotland during the 2020 practising certificate renewal suggests that the proportion of male solicitors aged 60+ is superior than 75% (3).

1) Public Health Scotland – statistical report C-19

(2) Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

(3) Law Society of Scotland. Initial diversity data from 2020 practising certificate renewal (December 2020). Not yet published

Race

An early-stage research paper, not yet peer-reviewed, covering 30,693 COVID-19 patients in England, Scotland and Wales suggests that Ethnic Minorities were more likely to be admitted in critical care and receive invasive ventilation than Whites. South Asians were 28% more likely to be admitted in intensive care, and Black, 36% more likely (1).

Scottish figures show similar findings, with South Asians having greater likelihood of dying of COVID-19 compared with Whites (odds ratio 1.9). There was insufficient data to form conclusions about other ethnicities (2).

Sickle cell disease is particularly common in people with an African or Caribbean family background (3). Homozygous (inherited) sickle cell disease is one of the ‘shielding’ conditions (4).

For the legal profession in general (including paralegals), a survey suggests 4% identify themselves as being from a non-white ethnic group (5). The data obtained by the Law Society of Scotland during the 2020 practising certificate renewal suggests 3% of the solicitors are from BAME backgrounds and this percentage increases to 6% in the case of solicitor population aged 30 and under (6).

Of the respondents to SLAB’s civil solicitor survey, 5% were from a non-white ethnic background (7).

1) Harrison, Ewen M. et al., Ethnicity and Outcomes from COVID-19: The ISARIC CCP-UK Prospective Observational Cohort Study of Hospitalised Patients (5/31/2020). Available at Ethnicity and Outcomes from COVID-19: The ISARIC CCP-UK Prospective Observational Cohort Study of Hospitalised Patients

(2)) National Records of Scotland. Analysis of deaths involving coronavirus (COVID-19) in Scotland, by ethinc group (July 2020. (last accessed 03/03/21)

(3) NHS. Overview – Sickle cell disease (April 2019). (last accessed 03/03/21)

(4)The Scottish Government. Shielding: a way forward for Scotland (June 2020) (last accessed 03/03/21)

(5) Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

(6) Law Society of Scotland. Initial diversity data from 2020 practising certificate renewal (December 2020). Not yet published.

(7) Scottish Legal Aid Board (SLAB). Civil Solicitors Survey 2019 Report (March 2020). (last accessed 03/03/21)

Disability

Disabled people are more likely to experience ill-health from contracting COVID-19 than the general population, due to likelihood of pre-existing health conditions and poorer overall health (1). Monthly figures on deaths involving Covid-19 show that in over 90% of cases the deceased had at least one pre-existing condition (2). A large percentage of those in the shielding group will also be classified as disabled under the Equality Act.

The Scottish Government have also issued advice to those who are not shielding but live with specific medical conditions, and (depending on their level of risk) may have to be “particularly careful not to become infected with coronavirus”. Many of these may be classified as disabled, for example those with cancer (non-shielding) or neurological conditions (3).

For legal the profession in general (including paralegals), a survey carried out by the Scottish Law Society suggests 5% have a disability (4). Of the respondents to Scottish Legal Aid Board’s civil solicitor survey, 4% declared they had a disability (5).

(1) The Scottish Government. Impact of COVID-19 on Equality Groups – Disability Analysis (October 2010)

(accessed 03/03/21)

(2) Deaths involving coronavirus (COVID-19) in Scotland, Week 19: Extra figures and tables

(3) The Scottish Government. Coronavirus (COVID-19): advice for people with specific medical conditions (February 2020). (accessed 03/03/21)

(4) Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

(5) Scottish Legal Aid Board (SLAB). Civil Solicitors Survey 2019 Report (March 2020). (last accessed 03/03/21)

Religion and Belief

Less than 1% of respondents to the LSS Profile of the Profession carried out in 2018 described themselves as Jewish, Sikh, Hindu or Buddhist. 49% of respondents indicated that they did not belong to a religion, religious denomination or body. In addition, 25% described belonging to the Church or Scotland (1).

(1) Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

Sexual Orientation

For the profession as a whole, 91% of respondents described their sexual orientation as heterosexual or straight, 3% as gay man, 2% as bisexual and 1% as lesbian. Less than 1% of respondents preferred to use a different term or identified as pansexual or asexual (1).

(1) Law Society of Scotland. Profile of the Profession 2018 (December 2018 (last accessed 03/03/21)

Pregnancy and maternity

In Scotland people who are pregnant don’t appear to be more susceptible to coronavirus (COVID-19) than the general population, but are generally more susceptible to infection (1).

1) NHS Scotland Inform. Coronavirus (COVID-19): Pregnancy and newborn babies. Coronavirus (COVID-19): Pregnancy and newborn babies | NHS inform (last accessed 03/03/2021).

Gender reassignment

For the legal profession as a whole, 8 out of 2,376 respondents identified as transgender in the survey carried out by the Law Society of Scotland in 2018 (1).

(1) URL: Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

Marriage or Civil Partnership

LSS Profile of the Profession respondents most frequently indicated that they were married (59%), with 20% never married and never registered a same-sex civil partnership. Fewer than 1% of respondents were in a registered same-sex civil partnership (1).

(1) Law Society of Scotland. Profile of the Profession 2018 (December 2018). (last accessed 03/03/21)

Socio-economic disadvantage: any people experiencing poverty

N/A - A proportionate, fair and effective justice system underpinned by the right to access to justice is an essential requirement to eliminate unlawful discrimination. The CRRF, as designed and intended to support firms and businesses, aims at preserving the level and quality of Legal Aid services during the Covid-19 pandemic and, consequently, the protection of the right to access to justice.

Stakeholder Engagement:

We have engaged extensively with the Scottish Legal Aid Board and the profession, and their representative organisations during the pandemic. This provided an opportunity to listen to stakeholder views, test ideas, share information about progress and discuss and address specific issues identified by sectors and individual businesses.

This Coronavirus Resilience and Recovery Fund (CRRF) was jointly delivered by the Scottish Government and The Scottish Legal Aid Board, who in collaboration, designed the fund to support those who have seen a drop in new legal aid business - so that legal firms and law centres are able to continue to offer legal aid services to the public during and post pandemic.

Mitigations -

The Coronavirus Recovery and Resilience Fund, as designed, will not impact the advancing of equality of opportunities. The CRRF aims at preserving the level and quality of Legal Aid services during the Covid-19 pandemic and, consequently, the protection of the right to access to justice. The grant funding agreement between the Scottish Government and firms and law centres sets out the eligibility criteria and terms and conditions of assistance from the Fund to ensure that the overall purposes of the grant are achieved.

Next Steps (if any)

The fund has now been delivered and is now closed.

Declaration and Publication

I have read the Equality Impact Assessment and I am satisfied that it represents a fair and reasonable view of the expected equality impact of the measures implemented.

Signed: Denise Swanson

Date: 05/01/22